The Bombay High Court (Goa Bench) has clarified that under Section 164(1) BNSS, the Magistrate must pass a preliminary order in writing stating the grounds of objective satisfaction that a dispute likely to cause breach of peace exists concerning land, water or boundaries, and such preliminary order is a sine qua non for assumption of jurisdiction. A mere notice calling upon parties to appear and file written statements, without recording reasons or grounds of satisfaction, is not a valid preliminary order under Section 164(1) BNSS.
The Court held that proceedings conducted and concluded without such preliminary order are without jurisdiction and stand vitiated; such defect is not a mere irregularity curable under Section 511 BNSS, particularly in light of Section 507(j) BNSS. Further, in proceedings under Section 164 BNSS, the Magistrate is confined to deciding actual possession of the disputed property as on the date of the preliminary order and cannot determine title; where the Magistrate ignores material evidence on possession, proceeds on ownership/title, or acts without complying with the mandatory statutory framework, revisional interference under Section 438 BNSS is justified to correct patent defects and jurisdictional error.
A Single Judge Bench of Justice Amit S. Jamsandekar observed that Section 164 BNSS mandates that the Executive Magistrate “shall make an order in writing, stating the grounds of his being so satisfied”, and that such preliminary order is the foundation of jurisdiction. The Bench observed that the plain language of Section 164 makes it clear that the Magistrate assumes jurisdiction only upon passing a preliminary order recording objective satisfaction regarding the existence of a dispute likely to cause breach of peace.
The Bench rejected the argument that a mere notice could be treated as a preliminary order, and specifically held that the notice dated 29 January 2025, which merely stated “I am satisfied that there exists a dispute likely to cause breach of public peace and tranquility” without reasons, particulars or grounds, could not satisfy Section 164(1). The Bench further held that absence of a preliminary order is not a mere irregularity curable under Section 511 BNSS, but an illegality affecting jurisdiction; in this regard, Section 507(j) BNSS was found material because it treats an order made under Part C or Part D of Chapter XI by a Magistrate not empowered by law as void.
The Bench also observed that the Magistrate had erred by proceeding substantially on title rather than actual possession, failed to conduct inquiry into possession of House No. 793 specifically, ignored the Respondents’ documentary evidence of possession, and wrongly recorded that the parties had chosen not to lead evidence. On that basis, the Bench held that the revisional court was justified in exercising jurisdiction under Section 438 BNSS to correct patent errors of law and fact.
Briefly, the controversy arose from complaints made by the Petitioner in January 2025 alleging trespass and harassment by the Respondents in respect of the property known as “VITHALDAS”. Pursuant thereto, the police requested invocation of Section 164 BNSS, and the Magistrate issued a notice calling upon the parties to file their written statements regarding their claims to possession.
The Petitioner asserted ownership and exclusive possession, and contended that the Respondents’ claim of Mundkarship over house was false and had already been rejected by the competent authorities, with only further proceedings pending before the Administrative Tribunal under Section 24 of the Mundkar Act. The Respondents, on the other hand, claimed long-standing possession of House No. 793 through their ancestors, asserted that the house had been constructed with the consent of the original landlord, and relied on documentary material to show possession, including panchayat, utility, tax and earlier complaint records.
The Magistrate nevertheless held in favour of the Petitioner, whereas the revisional court set aside that order on the grounds, inter alia, that there was no valid preliminary order under Section 164(1) BNSS and that the Magistrate had not properly decided actual possession. The petitioner therefore challenged the revisional order passed by the District Judge, whereby the Magistrate’s order under Section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was quashed and possession of house situated in survey of Village Morjim, Goa, was directed to be handed over to Respondent Nos. 1 and 2.
